Who's down with TPP?

Not every last lady. TPP is strangely becoming a key debate in the US presidential campaign, with Democratic candidate hopeful Hillary Clinton turning her stance on TPP. Considered naughty by nature by some, a suspected near final draft of the Trans Pacific Partnership agreement, known as TPP, was released on Wikileaks last week.

TTP is causing a lot of consternation.  Critics say the agreement benefits developed countries at the cost of developing countries.  They also argue that negotiations have been suspiciously secret. Proponents argue that TPP will reduces barriers to trade, support economic and job growth, improve IP protection and, 'create new 21st century trade rules.'  

Thor, Cool Cat Patriot
by Don Graham

It will indeed establish new trade rules.  The agreement exports a number of American institutions and cultural aspects of IP.  This should lead to harmonisation of laws, which can improve business prospects as it reduces uncertainty.  However, harmonisation often benefits existing, wealthier rights holders (typically in developed nations) and at the expense of developing nations.

With the promise of increased trade at the end of the agreement, the IP provisions could be considered the price of admission for developing countries.  The New Zealand government has put it rather bluntly, estimating an additional $2.7 billion in additional GDP by 2030, however,

"The only significant cost comes from extending New Zealand’s copyright period from 50 to 70 years. This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term. "

Cats VS Dogs by Mythee

This economic case for the extension of copyright term to a minimum of life plus 70 years is poor.  There is little evidence that extending copyright term incentivises innovation.  There may be a tipping point in copyright, where a shorter term could dissuade innovation, but death plus 70 years is far from this point.  It is hard to imagine starving artists, creative geniuses and dead creators increasing their production because their heirs might receive more years of copyright protection.

While the economic arguments are against term extension, there is evidence that public domain content spurs innovation and new content. Under the agreement, "The Parties recognise the importance of a rich and accessible public" and recognise the importance of good registers.  Despite this, the agreement's copyright terms will reduce the public domain.

There are also provisions for making the circumvention of DRM illegal (and everyone knows how much consumers looooove DRM) and vague liability for ISPs.  Not in the leaked draft are the different copyright terms for corporations, which were discussed earlier, presumably as life-support for Mickey Mouse.

Another interesting provision is that of damages in infringement cases.  For trademarks and copyright, Article QQ.H.4, 9 damages, "shall be set out in an amount that would be sufficient to compensate the right holder for the harm caused by the infringement, and with a view to deterring future infringement." The sky's the limit.

In more money matters, the wording may also introduce the right for rights holders to pursue compensation from governments for lost profits stemming from non-compliant regulations.  This is already the case elsewhere.  In the UK, companies may sue the UK government for damages stemming from non-compliance with EU regulations, but the UK-EU relationship is entirely different from this trade partnership.  Combine that with the litigious American culture and who knows...

Gangsta Kat by Petful

Counterpunch, <who, Merpel notes, unfortunately misspell the acronym>, notes that pro rights holders arguments are binding, whereas those supporting the public domain are not. They also point out that TPP also has trade secret provisions which criminalise the theft of trade secrets via computers, but without protection for whistleblowers.

There are some silver linings.  This more positive article by Jeffery Frankel, a specialist in capital formation and economic growth, notes that the agreement provides environmental provisions and promotes better labour conditions. Given how heated and polarising the debate has become, there may be some cause for both sides to revisit.

Article QQ.H.3, 2 on enforcement practices makes the data geek in me happy, "Each Party recognises the importance of collecting and analysing statistical data and other relevant information concerning intellectual property rights infringements..." In addition, there are a host of other considerations I've not covered: TK, exhaustion of rights, bits and bobs on trade marks, cybersquatting, GIs, a lot of issues related to patents, criminalisation and others.  

All of this makes for unique foreign American policy. So, hip hop hooray for TTP.